Decision #25/10 - Type: Workers Compensation
Preamble
The worker is appealing decisions that were made by the Review Office of the Workers Compensation Board (“WCB”) dated April 15, 2007 and December 10, 2008 with regard to her claim for a low back injury that occurred on April 3, 2008 and for a further back injury that she sustained at work on March 8, 2008. Specifically, the worker asserts that there is medical evidence to support a causal relationship between the findings of a physical medicine and rehabilitation specialist and the compensable injury of April 3, 2007. She also asserts that there is an ongoing relationship between her March 8, 2008 compensable injury and her difficulties beyond September 1, 2008. A hearing was held June 23, 2009 to consider these matters.Issue
Claim for accident occurring April 3, 2007:
Whether or not the worker is entitled to wage loss benefits beyond July 3, 2007; and
Whether or not responsibility should be accepted for medical treatment beyond October 23, 2007.
Claim for accident occurring March 8, 2008:
Whether or not the worker is entitled to wage loss benefits beyond September 1, 2008.
Decision
Claim for accident occurring April 3, 2007:
That the worker is entitled to wage loss benefits beyond July 3, 2007;
That responsibility should be accepted for medical treatment beyond October 23, 2007.
Claim for accident occurring March 8, 2008:
That the worker is entitled to wage loss benefits beyond September 1, 2008.
Decision: Unanimous
Background
Claim for accident occurring April 3, 2007:
On April 3, 2007, the worker reported that she developed a pinching sensation in her low back with radiating pain down her left leg while performing her work duties.
Medical information on file showed that the worker sought treatment from her family physician and was referred to a physiotherapist. The diagnosis rendered by the family physician was a back strain and the physiotherapist’s diagnosis was an L5 disc bulge. A CT of the lumbosacral spine taken May 7, 2007 revealed no disc herniation, spinal stenosis or nerve root compression from L1 to S1. On May 22, 2007, the treating physician changed the diagnosis to a possible right piriformis syndrome.
In a progress report dated June 27, 2007, the treating physician reported that the worker was able to perform light duty work with the following restrictions: minimal walking (4 hrs), minimal standing (4 hrs) with frequent changes of position, lifting maximum 20 lbs., minimal bending, cautious bending, minimal reaching or pulling for one month.
At a return to work meeting held on June 29, 2007, it was decided that the worker would start modified duties on July 4, 2007, work five hours per day (her pre-accident schedule) and would rotate so she could stand for 2 hours, sit for 1 hour and then stand for another 2 hours. A stool would be made available during the standing portion of her shift in order for the worker to take a break as required. The worker returned to modified duties as scheduled.
On July 9, 2007, the worker advised her WCB adjudicator that she had been working 4 hour shifts since her return to work. The adjudicator advised the worker to see her doctor again if she felt that she was unable to perform 5 hours per shift.
On July 10, 2007, a second physician reported that the worker was fit for 3 hours per day at light duties. The worker was instructed to alternate between sitting and standing with minimal bending and no pushing or pulling. A weight restriction of 20 lbs. was outlined.
The worker stopped working modified duties on July 11, 2007.
On July 12, 2007, a WCB medical advisor opined that the diagnosis of piriformis syndrome was likely related to the workplace accident and that the condition should resolve in 4 to 6 weeks.
The medical advisor noted that a physiotherapy report dated April 16, 2007 revealed ongoing symptoms and signs; however, there was no further objective information provided since that report.
On July 16, 2007, a third physician indicated that the worker was capable of alternate or modified work that involved no lifting, no walking, no pushing, no pulling, minimal bending and no overhead reaching.
On July 17, 2007, the WCB medical advisor noted that there were no subjective or objective findings filled out on the July 16, 2007 progress report. He noted that prior examinations on file revealed ongoing pain with radiation down the leg and tenderness of the piriformis which indicated that the worker had not yet recovered. The medical advisor stated that the worker should avoid repetitive heavy lifting greater than 25 lbs., repetitive crouching or bending of the lumbosacral spine and prolonged walking or standing without an opportunity to rest or change position. These restrictions were to be reviewed again in 4 weeks.
On July 18, 2007, the adjudicator contacted the worker to advise that the progress report of July 16, 2007 did not contain any medical information other than suggested restrictions for the period July 16 to 19. The worker was advised that the WCB makes decisions based on objective medical findings and that based on all the available information, the WCB considered that she had been fit and remained fit for modified duties and that she was not entitled to wage loss benefits beyond July 4, 2007.
In a progress report dated July 19, 2007, the second physician reported that the worker had a recurrence of severe pain with left sciatica that was worse after twisting at work. The objective findings were tenderness in the low lumbar spine and left SI joint.
On July 31, 2007, the worker was advised that a complete review of her file had been completed in consultation with the WCB’s healthcare department, and that the WCB remained of the opinion that she was capable of performing modified duties and that she was not entitled to wage loss benefits effective July 4, 2007.
Following a WCB call-in examination on September 27, 2007, the WCB medical advisor stated the evidence did not reveal a probable structural pathoanatomic lesion in relation to the April 3, 2007 work injury. He also was unable to identify an objective impairment of function on which to impose workplace restrictions.
In a decision dated October 16, 2007, the worker was advised that in the WCB’s opinion, she was capable of returning to her pre-accident duties and that WCB responsibility for medical treatment including prescriptions, physiotherapy, etc. would conclude on October 23, 2007. Based on the examination findings of September 27, 2007, the normal CT scan, the accident mechanics, treatment provided and the time that had passed, the WCB felt the worker had made a full recovery from her accident and was capable of returning to unrestricted work activities.
On November 22, 2007, a physical medicine and rehabilitation specialist diagnosed the worker with myofascial pain syndrome. In his report dated November 26, 2007, the physical medicine specialist opined that the worker’s pain from the myofascial pain syndrome of the left piriformis muscle was directly due to her work.
On January 25, 2008, a worker advisor asked the WCB to reconsider its decision that the worker had made a full and complete recovery as of October 23, 2007. The worker advisor outlined the position that there had been consistent ongoing subjective/objective symptoms from the start of the worker’s compensable accident of pain radiation with left sided numbness down the left leg and tenderness over the left buttock which coincided with the diagnosis of myofascial pain syndrome associated with the left piriformis muscle.
The worker advisor also disagreed with the WCB that the worker was capable of performing modified duties for 5 hours per day. She stated that none of the worker’s attending physicians supported a return to modified duties for 5 hours per day, and that the July 10, 2007 doctor’s progress report imposed light duty work at 3 hours per day.
A WCB medical advisor reviewed the file on February 11, 2008. He stated that the worker was noted to have an essentially normal lumbar spine range of motion at the examination on September 27, 2007. It was improbable that the decreased range of motion which developed between September 2007 and November 2007, would bear a causal relationship to the April 2007 injury. He stated that a neurological impairment was not reported and that tenderness was not an objective finding. He opined that myofascial pain syndrome was a description of the purported source of pain but it was not a well validated clinical diagnosis. He indicated that the worker’s muscle was the source of her reported pain and the primary recommendation would be to resume normal activities.
In a decision dated February 12, 2008, the adjudicator stated that she remained of the opinion that the accident employer provided the worker with suitable duties as of July 4, 2007 and that the worker was capable of performing said duties for 5 hours per day. The adjudicator noted that a return to work plan was developed based on information provided by the worker’s physician. There was no indication of a limitation in the number of hours the worker could work per day, only that the worker was limited to sitting or standing in 4 hour intervals. Arrangements were then made in conjunction with the employer, the worker and her union representative to accommodate the worker with a series of duties that would not require her to be in a static position of more than two hours at a time. The use of a stool was made available if required.
The adjudicator noted that the September 27, 2007 examination revealed an essentially normal range of motion and there was no identification of any objective limitation of function. The new information submitted by the physical medicine and rehabilitation consultant indicated a current loss of range with a normal neurological exam and subjective complaints that were unchanged from previous complaints. Based on these facts, the adjudicator opined that the worker had recovered from the effects of her April 3, 2007 accident and that the WCB was unable to establish a cause and effect relationship between any current loss of range of motion and her April 3, 2007 workplace accident.
On February 19, 2008, the worker advisor appealed the WCB’s decision to deny wage loss benefits beyond July 4, 2007 and medical aid benefits beyond October 23, 2007.
In a decision dated April 15, 2008 Review Office upheld the adjudicator’s decisions that the worker was not entitled to wage loss benefits beyond July 3, 2007 and that no responsibility should be accepted for medical treatment beyond October 23, 2007. In making its decision, Review Office noted that the treating physician outlined restrictions of minimal walking (4 hours), minimal standing (4 hours) with frequent changes of position, no lifting greater than 20 lbs, minimal bending and minimal reaching or pulling. It felt that given these outlined restrictions, there was insufficient medical evidence to support that the worker was not capable of working five hours per day effective July 4, 2007 nor did the medical evidence support the worker’s time loss effective July 11, 2007. Review Office considered the July 10, 2007 progress report and the July 16, 2007 progress report. It stated that although the July 16, 2007 progress report recommended that the worker remain off work, the clinical findings of tenderness of the lower lumbar spine and left sacroiliac joint was not sufficient to support that the worker was not capable of working the modified duties. Review Office also indicated that it accepted the findings of the WCB medical advisor following his September 27, 2007 examination of the worker and the medical advisor’s opinion outlined on February 11, 2008.
On January 28, 2009, the worker advisor appealed Review Office’s decision dated April 15, 2008 to the Appeal Commission.
Claim for accident occurring March 8, 2008:
On March 12, 2008, the worker advised the WCB that she sustained an injury to her back on March 8, 2008 while moving parcels. Medical attention was sought and the claim for compensation was accepted based on a diagnosis of a sprain/strain to the lower back.
On June 30, 2008, the worker was assessed by a WCB medical advisor and his impression of the worker’s medical condition was as follows:
“Today’s examination was made difficult as a result of pain behavior. Examples of pain behavior that made interpretation of today’s examination difficult were frequent vocalizations regarding symptoms, expressions of fear of later symptoms and widespread giveaway weakness. This widespread giveaway weakness itself would not have a structural pathoanatomical basis.
Regarding function, work beyond sedentary activity within the workplace is not recommended for the present time.”
The medical advisor indicated that another CT scan would be arranged and that a further opinion regarding diagnosis, function and medical management would be provided.
A CT scan of the lumbosacral spine dated July 29, 2008 revealed no disc herniation, spinal stenosis or nerve root compression from T12 to S1 and no bony abnormalities were identified.
On August 1, 2008, the WCB medical advisor commented that the CT scan was interpreted as being normal. After review of the findings from the recent call in exam and the normal CT findings, the medical advisor indicated that there was no contra-indication to a return to regular activity and that the CT scan did not provide any evidence to support the need for a change to the previously set out graduated return to work schedule. On August 3, 2008, the work returned to modified duty work.
At the request of primary adjudication, the file was reviewed by the medical advisor who examined the worker on June 30, 2008. Based on his review of the file and the file related to the 2007 claim, he stated it was not probable that the worker’s presently reported back difficulties were related to the March 8, 2008 workplace injury.
On August 25, 2008, a WCB adjudicator determined that the worker had recovered from the effects of her March 8, 2008 workplace injury and that WCB responsibility for medical costs and modified duties would end on September 1, 2008.
A WCB rehabilitation specialist carried out a job site assessment on October 20, 2008. It was determined that all the duties associated with the worker’s position were within the outlined restrictions. On October 22, 2008, the worker was advised that there would be no change to the previous decision that her job duties were appropriate and were within the outlined restrictions.
The case was considered by Review Office on December 10, 2008 based on an appeal submission by a worker advisor dated October 10, 2008. Review Office upheld the adjudicator’s decision that the worker was not entitled to wage loss benefits beyond September 1, 2008. Review Office noted that the physician who examined the worker on September 11, 2008 was the first physician the worker attended but the worker did not see this physician from April 2008 to September 2008. The October 8, 2008 physician’s report indicated the worker complained of lumbar pain and sciatica however Review Office found that no clinical findings were provided. Review Office accepted the opinion previously expressed by the WCB medical advisor, that there was no evidence of a structural pathoanatomical basis for the widespread giveaway weakness in both lower extremities and that the CT scan did not provide any evidence to support the need for a change to the previously arranged graduated return to work schedule and no contra-indication to a return to regular activity.
On January 28, 2009, the worker advisor appealed Review Office’s decision dated December 10, 2008 to the Appeal Commission. The worker advisor submitted a report from an orthopaedic specialist dated December 21, 2008 for consideration.
Following the hearing held on June 23, 2009, the appeal panel met on several occasions to discuss the case. The panel requested and received additional medical information from two of the worker’s treating physicians and also requested additional information from the accident employer regarding their attempts to accommodate the worker in the workplace. The requested information was forwarded to the interested parties for comment. On February 4, 2010, the panel met to discuss the case further and render its final decision on the issues under appeal.
Reasons
Applicable Legislation
The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”
Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.
Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
The Worker’s Position
The worker was assisted by a worker advisor at the hearing. The worker’s position was that the Review Office erred in determining that there was insufficient evidence to support a causal relationship between the findings provided by the physiatrist in November 2007 and the compensable injury of April 3, 2007. It was submitted that the medical evidence did support a relationship between the workplace accident and the correct diagnosis, that being piriformis syndrome. As the evidence showed a continuous left sided compensable area of injury with ongoing subjective and objective findings, there was an ongoing entitlement to benefits.
With respect to wage loss benefits, the medical evidence supported an ongoing medical condition which required work restrictions. It was the worker’s position that the employer was unable to accommodate her within her compensable restrictions and therefore she was placed in a loss of earnings capacity. Her loss of earning capacity did not end as of July 4, 2007, with respect to the April 2007 claim and most definitely did not end as of September 1, 2008 in association with the March 2008 claim. Wage loss benefits were therefore payable.
The Employer’s Position
A representative from the employer was present at the hearing. The employer supported the WCB’s acceptance of the worker’s claims as low back sprains/strains only. It submitted that both incidents were minor in nature considering the mechanisms of injury. Given the minor nature of the claims and the time which had passed since the accidents, it was difficult to accept that the worker would continue to suffer from the effects of these minor incidents. The relationship between the new diagnosis of myofascial pain syndrome and the workplace injury was not supported.
With respect to entitlement to wage loss benefits, it was submitted that many attempts were made to accommodate the worker within her function limitations during the 2008/2009 season. The work she was given in January 2008 when she returned to driver duties was not “heavy lifting” as described by the physiatrist, but actually fell within the light work category. Almost two years had passed since the worker experienced her last incident and it was submitted that it was unreasonable that she continued to be unable to perform even sedentary type work and remained completely out of the work force.
Analysis
There were three issues being appealed before the panel. In order to decide these issues, the panel had to consider two broad questions: What was the worker’s diagnosis and what ability did she have to perform her work duties?
Worker’s diagnosis
Both the April 2007 claim and the March 2008 claim were accepted by the WCB as lower back strain injuries. The WCB did not accept the diagnosis of piriformis syndrome as outlined in the report from the worker’s attending physician dated October 8, 2008. The WCB instead preferred the September 27, 2007 opinion of the WCB medical advisor which indicated that a review of the file and findings on examination did not reveal evidence of a probable structural pathoanatomic lesion in relation to the April 3, 2007 workplace injury.
At the hearing, the worker’s evidence was that she continued to experience the left sided pain in her low back and that she was scheduled to see the physical medicine specialist again the next day. She remained unemployed, as accommodation arrangements had not been made with the employer.
After the hearing, the panel requested a further report from the physical medicine specialist. By letter dated November 23, 2009, the physical medicine specialist advised as follows:
- The worker has piriformis syndrome, which is a complex of symptoms arising from irritated piriformis muscle. Some of these symptoms are referred pain to the skin surface and radiating pain to distant areas, such as down the leg mimicking real sciatic pain;
- The pain arising from the piriformis muscle is due to active trigger points located within the muscle. Therefore, trigger point referred pain is in the definition of myofascial pain syndrome;
- In this case, the physical medicine specialist advised he used the terms “piriformis syndrome” and “myofascial pain syndrome” interchangeably. Clinically they were the same;
- On physical examination, the worker had a positive piriformis test;
- The recovery period for piriformis syndrome is highly individual and depended on the way of treatment;
- The worker had been referred to another physical medicine specialist for assessment for piriformis trigger points needling.
The panel also requested a report from the second physical medicine specialist. His consult letter of November 19, 2009 indicated that his findings indicated symptomatic taut bands in the left quadratus lumborum, left gluteus minimus and piriformis. Myofascial trigger point needling was reviewed with her, and treatment was planned to be pursued in the new year.
After reviewing the medical evidence, the panel is satisfied on a balance of probabilities that the worker has piriformis syndrome and that this condition is related to her April, 2007 workplace accident. Since the original workplace accident, the worker has consistently complained of symptoms which accord with the diagnosis of piriformis syndrome. We therefore accept that on April 3, 2007, she suffered injury to the piriformis muscle and that injury continues to be symptomatic. In the panel’s view, the second workplace accident of March, 2008 was an aggravation of the original April, 2007 piriformis injury.
In coming to our decision, the panel relied on the opinions of the attending physician and the physical medicine specialist, both of whom stated that the piriformis syndrome was related to work. The panel also notes that at one point, by report dated July 12, 2007, a WCB medical advisor also supported a diagnosis of piriformis syndrome which was related to the workplace incident. In our opinion, there is sufficient medical evidence to support the finding that the worker’s ongoing left sided piriformis syndrome is work related, and therefore compensable.
Ability to perform duties
The panel then considered the second question of the extent to which the piriformis syndrome affected the worker’s functional capacity to work. While the existence of a diagnosis of piriformis syndrome did lend some credibility to the worker’s pain complaints, the panel did not accept the extent of the disability complained of by the worker. In that regard, we acknowledge the notations on the medical file regarding the worker’s presentation with hypersensitivity to pain, the presence of excessive pain behaviour, and her reluctance to assessment.
In the panel’s opinion, there were periods of time during the course of the file where the worker was proposing restrictions which were neither reasonable nor supported by medical documentation. Most notably, the panel did not accept the worker’s assertion that she was restricted to a four hour shift during her initial return to work in July, 2007, and that the provision of a chair with a slight tilt constituted a failure to provide her with suitable accommodation.
The extent of the worker’s loss of earning capacity can only be determined by reference to the restrictions outlined by the worker’s attending physician at any given point in time and the ability of the employer to accommodate those restrictions.
With respect to restrictions, the panel did have some concerns about manipulation by the worker of her attending physician(s) and the return to work program, thus affecting the accuracy of the restrictions suggested by the various physicians who worked at the medical clinic she attended. Unfortunately, given the status of the adjudication of the claim by the WCB and its rejection of an ongoing diagnosis of piriformis syndrome, there is no better evidence than the information from the various attending physicians. As the WCB was operating under the “wrong” diagnosis, it was not up to date on the worker’s medical status from week to week, which tended to fluctuate as a result of flare-ups of the condition. Thus, although the evidence from the attending physicians may be imperfect, it is the best available evidence and the panel is prepared to rely upon the restrictions suggested by the clinic doctors in determining the worker’s entitlement to wage loss benefits.
With respect to the ability of the employer to accommodate, in response to the panel’s request, the employer provided a chronological history from April 3, 2007 to March 1, 2009 which outlined the accommodation attempts made by the employer. The worker was given the opportunity to provide comment as to the accuracy of the information and no challenge was made in that regard by the worker. The panel therefore accepts the information provided by the employer as being an accurate reflection of the accommodation which was offered to the worker.
Application to issues appealed
We will now address the specific issues appealed before the panel.
1. Whether or not the worker is entitled to wage loss benefits beyond July 3, 2007.
The panel finds that the worker is entitled to wage loss benefits beyond July 3, 2007. The panel directs the WCB to determine wage loss benefits with reference to the restrictions outlined by the worker’s attending physicians, from time to time, in conjunction with the availability of accommodation with the employer. The panel does not accept any restrictions which were proposed by the worker absent medical documentation to support such restriction.
2. Whether or not responsibility should be accepted for medical treatment beyond October 23, 2007.
The panel finds that the worker has a compensable diagnosis of piriformis syndrome, and therefore is entitled to medical aid beyond October 23, 2007.
3. Whether or not the worker is entitled to wage loss benefits beyond September 1, 2008.
The panel finds that the worker is entitled to wage loss benefits beyond September 1, 2008. The panel directs the WCB to determine wage loss benefits with reference to the restrictions outlined by the attending physician in his letter of October 8, 2008, and the availability of accommodated work with the employer. The panel notes that the restrictions outlined in the letter of October 8, 2008 were based on the attending physician’s examinations of September 11 and 18, 2008 and are sufficiently proximate to September 1, 2008 that they may be considered effective from that date.
The worker’s appeals are therefore allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 26th day of March, 2010